Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94

Deanna McMaster | Allie Flack | Renee Shike

Key takeout

A party seeking orders from the Industrial Commission is responsible for proving the existence, or non‑existence, of facts that justify the orders it seeks.

If a party alleges that a work health and safety entry permit (WHS Entry Permit) issued under the Work Health and Safety Act 2011 (Qld) (WHS Act) is invalid, the party making that allegation must prove that there are no ‘relevant workers’ on the premises.

Facts

We reported on this dispute in 2021 Union representatives permitted to enter construction site over safety issues – Construction Law Made Easy

This is another appeal by Enco in its quest to invalidate WHS Entry Permits entitling the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to enter Enco’s worksite.

The matter originated in the Industrial Commission where Enco alleged that WHS Entry Permits issued under the WHS Act were invalid because there were no ‘relevant workers’ on the premises. Union officials may only enter a workplace if there are ‘relevant workers’ present.  ‘Relevant workers’ are those who are members of, or are eligible to be members of, the union.  There are two potential bases of worker eligibility:

1. Terrazzo Rule, which allows persons ‘engaged in the preparation and/or erection of terrazzo or similar compositions‘ to be eligible for union membership; and
2. FEDFA Rule, which allows bobcat skid-steer operators, boiler attendants, gantry cranes operators and hydraulic pumps operators to be eligible for union membership.

FEDFA stands for ‘Federal Engine Drivers and Firearms Association’, which prior to becoming part of the CFMMEU covered crane drivers, plant operators and other construction workers.

Commissioner Hartigan found for the CFMMEU, ruling that there were workers on site who were eligible under the Terrazzo Rule, and that she could not be satisfied there were no eligible workers under the FEDFA Rule.  Enco’s first appeal to the to the Industrial Court of Queensland was dismissed by President Davis.  Enco then appealed to the Court of Appeal on the grounds that President Davis and Commissioner Hartigan were wrong in concluding that:

1. The Terrazzo Rule covered some of Enco’s workers.
2. Enco bore the onus of proving that none of its workers were eligible under the FEDFA Rule.

Decision

The appeal was dismissed with costs.  Enco failed to prove that the FEDFA Rule did not apply to workers on site, so the WHS Entry Permits were valid.  Given the validity of the permits, it was unnecessary for the court to consider the Terrazzo Rule.

Onus of proof in the Industrial Commission

In general, a party who asserts a conclusion must prove the facts that lead to that conclusion.  Enco sought to displace the general rule, relying on several cases that stated there were qualifications to the onus of proof in the Commission proceedings.  However, the cases did not support the proposition that Enco did not bear the onus of proof.  Particularly, some of the cases explicitly provided that the onus of proof lies with the party asserting the existence of a dispute.

Therefore, it was necessary for Enco, as the party attempting to invoke the Commission’s jurisdiction, to prove the facts on which it relied.  Enco failed to prove that there were no workers on site who were eligible to be members of the CFMMEU pursuant to the FEDFA Rule.  Therefore, the WHS Entry Permits relied on by the CFMMEU were valid.

The position would have been different if the CFMMEU sought to invoke the Commission’s jurisdiction.

Terrazzo Rule 

Even if Commissioner Hartigan and President Davis’ conclusions about the Terrazzo Rule were wrong, the WHS Entry Permits were valid based on Enco’s failure to prove that there were no eligible workers under the FEDFA Rule.  Therefore, it was unnecessary for the court to consider the interpretation of the Terrazzo Rule.